Morgan v Morgan

On an application for permission to appeal against a direction concerning competing offers for matrimonial property, permission should be granted where the proposed appeal has a real prospect of success. A decision weighing which offer is more favourable may be a finding of fact rather than an exercise of judicial discretion. It will be set aside only if the appellate court is satisfied that it was wrong. Material developments after the decision may be relevant to that assessment. Where implementation may prejudice the proposed appeal, a stay and an expedited hearing may be appropriate.

The parties’ ancillary-relief order required their matrimonial home and adjacent development land to be sold. The wife applied for a direction that they accept Millgate Developments Limited’s conditional offer. The husband proposed an unconditional purchase by himself at a lower stated price, supported by short-term borrowing, and later made further proposals.

On 3 November 2006, Judge Horowitz QC directed the parties to accept Millgate’s conditional offer, considering it marginally more favourable when the possible sale price, remedial works, delay and the wife’s share were assessed. The husband sought permission to appeal, a stay of execution and expedition. The central issue was whether the judge’s comparative assessment was arguably wrong, particularly in light of developments after the direction.

1. Permission granted. The husband had a real prospect of showing that the direction to accept Millgate’s conditional offer was wrong, especially when assessed in light of three subsequent developments: an increased offer by the husband, a demand by NatWest for payment of interest and a possible foreclosure, and Millgate’s revised treatment of engineering fees.
2. The judge’s task was to determine which offer was more favourable to the parties jointly as sellers. Although the court was not prepared at the permission stage to characterise that exercise as a judicial discretion, it treated the determination as a finding of fact. The Court of Appeal would set it aside only if satisfied that it was wrong.
3. The judge had assessed the conditional Millgate offer as likely to produce completion at about £2,580,000, compared with the husband’s unconditional offer of £2,450,000. The resulting potential advantage to the wife was estimated at about £60,000, after allowing for increased interest owed to NatWest. The later developments were capable of materially affecting that assessment.
4. A stay was necessary to preserve the position pending the appeal. The court recognised the risk that Millgate might withdraw if acceptance was delayed, but there was no specific evidence that it would do so. The appeal was directed to be heard urgently before two Lords Justices during the remainder of the Michaelmas term.

Applications for permission to appeal, a stay of execution and expedition were granted. The costs of the hearing were made costs in the appeal.

• Court of Appeal (Civil Division): permission to appeal granted from the direction of His Honour Judge Horowitz QC dated 3 November 2006. A stay of execution and an expedited hearing were ordered.
• High Court, Family Division: directed the parties to accept Millgate Developments Limited’s conditional offer for the matrimonial home and adjacent land.